Citation Nr: 1304550 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-25 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 17, 2011. 2. Entitlement to a rating in excess of 50 percent for PTSD. 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on account of being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1942 to December 1945 and from September 1950 to December 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). A review of the Veteran's electronic virtual VA file reveals that all documents in this file have already been reviewed by the RO prior to certification of the Veteran's appeal to the Board. A December 2009 statement of the case explained to the Veteran why his claims for service connection for bronchotosis, asbestosis, bilateral hearing loss, and tinnitus had been denied. The Veteran did not submit a substantive appeal with regard to these issues and they are not currently in appellate status before the Board. In a December 2010 letter the Veteran stated that he no longer wanted a hearing before a Veterans Law Judge. The Veteran's claims were remanded by the Board in September 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to December 17, 2011, the Veteran's PTSD was moderate in nature and resulted in definite occupational impairment equating to reduced reliability and productivity. The Veteran had dysphoric mood, he had impaired concentration, and he had limited insight into his condition. 2. The Veteran's PTSD has not shown occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 3. The Veteran's only service-connected disability, PTSD, does not render him unable to independently perform daily functions of self-care or unable to protect himself from the hazards and dangers incident to his daily environment. 4. The Veteran does not have a single service-connected disability ratable at 100 percent disabling. CONCLUSIONS OF LAW 1. Prior to December 17, 2011, the criteria for a 50 percent rating, but no higher, for PTSD were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for special monthly compensation based upon the need for regular aid and attendance or by reason of being housebound have not been met or approximated. 38 U.S.C.A. §§ 1114(l), 1114(s), 1502 (West 2002 & 2012); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In August and September 2009, prior to the rating decision on appeal, the RO sent letters to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claims and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As to the duty to assist, VA has associated with the claims folder the Veteran's VA treatment records. The Veteran has been afforded VA medical examinations. The Veteran has submitted a private medical opinion in support of his SMC claim. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there are any additional records to support the Veteran's claims. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Rating - PTSD The Board has considered the full history of the Veteran's PTSD. He had service in the Navy during World War II and during the Korean War. Service connection has been in effect for the Veteran's PTSD since April 2008. He submitted his claim for a rating in excess of 30 percent in August 2009. In June 2012, the RO granted the Veteran an increased staged rating of 50 percent for his PTSD, effective from December 17, 2011. On VA examination in September 2009 the Veteran stated that he did not receive any mental health treatment or medication for his PTSD. The Veteran reported intrusive thoughts of combat twice a week and nightmares once every few months. He described reacting to loud noises. He stated that he avoided crowds and did not like to talk about combat. He described emotional detachment from others. He reported problems with concentration and described an exaggerated startle reaction to loud noises and unexpected approaches. Examination revealed the Veteran's speech to be regular rate and rhythm. His mood was somewhat dysphoric. There was no evidence of psychomotor retardation. The Veteran was cooperative and pleasant with the examiner. His thought process was logical and coherent. His thought content was devoid of current auditory or visual hallucinations. There was no evidence of delusional content. He denied current thoughts of hurting himself or others. He denied history of suicide attempt. Memory was intact for immediate, recent and remote events. He was not able to concentrate well enough to spell "world" backwards. The Veteran had limited insight into his condition. The September 2009 VA examiner opined that the Veteran's social adaptability was mildly impaired. In terms of his ability to maintain employment, perform job duties in a reliable, flexible and efficient manner, such appeared to be definitely impaired. The examiner opined that the Veteran's level of disability to be in the definite to moderate range. Current general assessment of functioning (GAF) score was noted to be 58. The Veteran was afforded another VA examination in December 2011. The examiner noted that the Veteran has severe dementia and that when the dementia is taken into consideration the Veteran has total occupational and social impairment. The examiner stated that he was able to differentiate the portion of the occupational and social impairment which was attributable to PTSD alone. The examiner stated that the Veteran had chronic PTSD that was moderate in nature. GAF due to PTSD alone was noted to be 50. The examiner noted that the PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self care and conversation. The Veteran reported recurrent and distressing recollections and dreams of service. He reported markedly diminished interest or participation in significant activities. Also noted were difficulty falling/staying asleep, irritability, hypervigilance and exaggerated startle response. The Veteran denied suicidal and homicidal ideation. With regards to the combination of the Veteran's PTSD and severe dementia, additional psychiatric symptoms were noted including memory impairment, illogical speech, difficulty understanding complex commands, impaired judgment, impaired abstract thinking and spatial disorientation. Diagnostic Code 9411 provides that a 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Board finds that the Veteran met the criteria for a 50 percent rating prior to December 17, 2011. Although the September 2009 VA examiner only noted that the Veteran's social adaptability was mildly impaired, he stated that his employment ability was definitely impaired. He noted that the Veteran's level of disability due to PTSD was in the definite to moderate range. On examination, the Veteran's mood was dysphoric, he was unable to concentrate, and he had limited insight into his condition. The Board recognizes that the September 2009 examination report also indicate symptoms not meeting the criteria for a 50 percent rating. However, overall the Board finds that the when all doubt is weighed in favor of the Veteran, he more nearly met the criteria for a 50 percent rating for his PTSD symptomatology prior to December 17, 2011. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When considering symptoms only due to the Veteran's service-connected PTSD and not those due to nonservice-connected disability (dementia and stroke), the Board finds that the Veteran has not met the criteria for a rating in excess of 50 percent at any time during the period on appeal. The records have indicates that the Veteran has not had panic attacks, delusions, hallucinations or obsessive-compulsive behavior due to PTSD. The Veteran has denied suicidal and homicidal ideation. The medical records have not reflected that the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. In the case at hand, it is clear that the symptomatology attributable to the Veteran's service-connected PTSD has met the criteria for a 50 percent rating, but no higher, at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected PTSD is appropriately contemplated by the Rating Schedule. Therefore, referral for consideration of an extraschedular evaluation is not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not alleged that he was unemployable due to the service-connected PTSD at any time during the course of the appeal. Thus, a total rating for compensation purposes based on individual unemployability (TDIU) claim is not raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). III. Special Monthly Compensation Special monthly compensation is payable at a specified rate if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Not all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) must be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether a veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for special monthly compensation based on the need for aid and attendance. The Board recognizes that in November 2011 a private physician stated that the Veteran needs care in assisted living, that the Veteran cannot dress, bathe, or toilet (by himself), and that the Veteran is not able to manage daily affairs. The Board also notes that in January 2012 a VA physician examined the Veteran and stated that the Veteran the Veteran is able to feed himself, but otherwise he requires total care from his nursing home facility. However, the VA examiner noted that the Veteran's restrictions were due to dementia and residuals of a stroke. The medical opinions have not attributed any of the Veteran's need for aid and assistance to the Veteran's service-connected PTSD. There is simply no competent clinical evidence that the Veteran's service-connected disability (PTSD, evaluated as 50 percent disabling,) results in any of the criteria set forth at 38 C.F.R. § 3.352(a). Accordingly, the Veteran is not entitled to SMC based on the need for regular aid and attendance of another person. Under 38 U.S.C.A. § 1114(s), special monthly compensation is payable if a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. The second requirement is met when a veteran is substantially confined as a direct result of service-connected disability to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for special monthly compensation based on housebound status. The Veteran has no single service-connected disability evaluated as 100 percent disabling and thus he is not entitled to special monthly compensation based on being housebound. The Board notes that neither the Veteran, nor the Veteran's son (the Veteran's fiduciary), has asserted that the Veteran's service-connected PTSD causes the Veteran to be so helpless as to be in need of regular aid and attendance or cause the Veteran to be housebound, nor does the evidence support such an assertion. In sum, the evidence demonstrates that the Veteran is not entitled to special monthly compensation based on the need for aid and attendance or housebound status. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A 50 percent rating for PTSD prior to December 17, 2011, is granted, subject to the law and regulations regarding the award of monetary benefits. Entitlement to a rating in excess of 50 percent for PTSD is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person, or on account of being housebound, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs